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No. 15-2560
_________________________
IN THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
_________________________
WIKIMEDIA FOUNDATION, et al.,
Plaintiffs-Appellants,
v.
NATIONAL SECURITY AGENCY, et al.,
Defendants-Appellees.
_________________________
On Appeal from the United States District Court
for the District of Maryland, Baltimore Division
_________________________
BRIEF OF THE REPORTERS COMMITTEE FOR FREEDOM OF THE
PRESS, THE THOMAS JEFFERSON CENTER FOR THE PROTECTION
OF FREE EXPRESSION AND 17 MEDIA ORGANIZATIONS AS AMICI
CURIAE IN SUPPORT OF PLAINTIFFS-APPELLANTS
_________________________
J. Joshua Wheeler
THOMAS JEFFERSON CENTER FOR THE
PROTECTION OF FREE EXPRESSION &
THE UNIVERSITY OF VIRGINIA SCHOOL OF LAW
FIRST AMENDMENT CLINIC
400 Worrell Drive
Charlottesville, VA 22911
Telephone: (434) 295–4784
[email protected]
Bruce D. Brown
Counsel of Record
Gregg P. Leslie
Hannah Bloch-Wehba
REPORTERS COMMITTEE FOR
FREEDOM OF THE PRESS
1156 15th Street NW, Suite 1250
Washington, D.C. 20005
Telephone: (202) 795-9300
Facsimile: (202) 795-9310
[email protected]
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CORPORATE DISCLOSURE STATEMENT
Pursuant to Rule 26.1 of the Fourth Circuit Rules of Appellate Procedure,
amici disclose that:
The Reporters Committee for Freedom of the Press is an unincorporated
nonprofit association of reporters and editors with no parent corporation and no
stock.
The Thomas Jefferson Center for the Protection of Free Expression is a
nonprofit organization with no parent corporation and no stock.
American Society of News Editors is a private, non-stock corporation that
has no parent.
Association of Alternative Newsmedia has no parent corporation and does
not issue any stock.
First Amendment Coalition is a nonprofit organization with no parent
company. It issues no stock and does not own any of the party’s or amicus’ stock.
First Look Media, Inc. is a non-profit non-stock corporation organized under
the laws of Delaware. No publicly-held corporation holds an interest of 10% or
more in First Look Media, Inc.
Free Press is a 501(c)(3) organization with no parent corporation and no
stock.
Freedom of the Press Foundation does not have a parent corporation, and no
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publicly held corporation owns 10% or more of the stock of the organization.
GateHouse Media, LLC is a for-profit Delaware limited liability company
(“GateHouse Media”). Ultimate Parent Company (indirect): GateHouse Media is
an indirect wholly-owned subsidiary of New Media Investment Group Inc., a
Delaware corporation and New York Stock Exchange publicly-traded company.
Parent Company (indirect): GateHouse Media is an indirect wholly-owned
subsidiary of New Media Holdings I LLC, a Delaware limited liability company
(New Media Holdings I LLC is a direct wholly-owned subsidiary of New Media
Investment Group Inc.). Parent Company (direct): GateHouse Media is a direct
wholly-owned subsidiary of New Media Holdings II LLC, a Delaware limited
liability company (New Media Holdings II LLC is an indirect wholly-owned
subsidiary of New Media Investment Group Inc.)
The International Documentary Association (IDA) is a nonprofit with no
corporate parent.
Investigative Reporters & Editors (IRE) is an independent, 501c3 nonprofit
organization that provides resources and training for journalists. IRE has no parent
company and does not sell stock.
The Investigative Reporting Workshop is a privately funded, nonprofit news
organization affiliated with the American University School of Communication in
Washington. It issues no stock.
ii
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National Press Photographers Association is a 501(c)(6) nonprofit
organization with no parent company. It issues no stock and does not own any of
the party’s or amicus’ stock.
North Jersey Media Group Inc. is a privately held company owned solely by
Macromedia Incorporated, also a privately held company.
Online News Association is a not-for-profit organization. It has no parent
corporation, and no publicly traded corporation owns 10% or more of its stock.
Radio Television Digital News Association is a nonprofit organization that
has no parent company and issues no stock.
Reporters Without Borders is a nonprofit association with no parent
corporation.
The Tully Center for Free Speech is a subsidiary of Syracuse University.
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TABLE OF CONTENTS
CORPORATE DISCLOSURE STATEMENT ......................................................... i
TABLE OF CONTENTS ......................................................................................... iv
TABLE OF AUTHORITIES .................................................................................... v
STATEMENT OF INTEREST ................................................................................. 1
SUMMARY OF ARGUMENT ................................................................................ 2
INTRODUCTION .................................................................................................... 3
ARGUMENT ............................................................................................................ 5
I.
The District Court erred in characterizing Plaintiffs’ claims as too
speculative to give rise to standing. ............................................................. 5
A. Communications surveillance impedes journalists’ ability to safeguard
confidential sources. ................................................................................. 7
B. Upstream surveillance has created well-documented chilling effects on
the journalistic profession. ....................................................................... 8
II. Upstream surveillance harms the press by permitting widespread searches
without adequate protections. .................................................................... 12
A. The Fourth Amendment is rooted in concerns about safeguarding the
press from general warrants. .................................................................. 13
B. Fourth Amendment protections must be rigorously applied when First
Amendment rights are at stake. .............................................................. 15
C. Section 702 permits searches and seizures of journalists’ documentary
materials and work product in violation of the Privacy Protection Act. 16
CONCLUSION ....................................................................................................... 18
APPENDIX A: DESCRIPTIONS OF AMICI ........................................................ 22
APPENDIX B: OF COUNSEL .............................................................................. 28
iv
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TABLE OF AUTHORITIES
CASES
Benham v. City of Charlotte,
635 F.3d 129 (4th Cir. 2011) ................................................................................ 6
Boyd v. United States,
116 U.S. 616 (1886) ............................................................................................ 13
Clapper v. Amnesty Intern. USA,
133 S.Ct. 1138 (2013) ....................................................................................... 4, 5
Constantine v. Rectors & Visitors of George Mason Univ.,
411 F.3d 474 (4th Cir. 2005) ................................................................................ 6
Cooksey v. Futrell,
721 F.3d 226 (4th Cir. 2013) ................................................................................ 6
Donohue v. Duling,
465 F.2d 196 (4th Cir. 1972) .............................................................................. 11
Entick v. Carrington,
19 How. St. Tr. 1029 (1765) ............................................................................... 13
Hassan v. City of New York,
804 F.3d 277 (3rd Cir. 2015), as amended (Feb. 2, 2016) .................................. 17
Laird v. Tatum,
408 U.S. 1 (1972) ............................................................................................ 6, 17
Marcus v. Search Warrant,
367 U.S. 717 (1961) ............................................................................................ 14
Stanford v. Texas,
379 U.S. 476 (1965) ...................................................................................... 12, 15
Wilkes v. Wood,
19 How. St. Tr. 1153 (1763) ............................................................................... 14
Zurcher v. Stanford Daily,
436 U.S. 547 (1979) ............................................................................................ 14
STATUTES
50 U.S.C. § 1806(c) ................................................................................................ 16
50 U.S.C. § 1881a ............................................................................................ passim
Privacy Protection Act (“PPA”), 42 U.S.C. § 2000aa ............................................ 15
OTHER AUTHORITIES
Human Rights Watch, With Liberty to Monitor All (July 2014)............... 6, 9, 10, 11
John D. O’Connor, I’m the Guy They Called Deep Throat,
Vanity Fair (July 2005) ......................................................................................... 7
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PEN American Center, Chilling Effects: NSA Surveillance Drives Writers to
Self-Censor (Nov. 2013) ............................................................................... 5, 8, 9
Pew Research Center, Investigative Journalists and Digital Security
(Feb. 2015) .................................................................................................. 5, 8, 10
Privacy and Civil Liberties Oversight Board, Report on the Surveillance Program
Operated Pursuant to Section 702 of the Foreign Intelligence Surveillance Act
(July 2, 2014). ....................................................................................... v, 3, 12, 15
REGULATIONS
28 C.F.R. § 50.10 .................................................................................................... 17
vi
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STATEMENT OF INTEREST OF AMICI CURIAE1
Amici curiae are the Reporters Committee for Freedom of the Press, Thomas
Jefferson Center for the Protection of Free Expression, American Society of News
Editors, Association of Alternative Newsmedia, First Amendment Coalition, First
Look Media Works, Inc., Free Press, Freedom of the Press Foundation, GateHouse
Media, LLC, International Documentary Assn., Investigative Reporters and
Editors, Investigative Reporting Workshop at American University, The Media
Consortium, National Press Photographers Association, North Jersey Media Group
Inc., Online News Association, Radio Television Digital News Association,
Reporters Without Borders, and the Tully Center for Free Speech. Amici are
described in more detail in Appendix A.
This case is of particular importance to amici because the court below erred
when it held that Plaintiffs lacked standing to assert that warrantless national
security surveillance under Section 702 of the Foreign Intelligence Surveillance
Act impinges upon their First Amendment rights. The holding below strays from
Fourth Circuit precedent regarding standing to assert First Amendment claims and
1
Pursuant to Rule 29(c)(5) of the Federal Rules of Appellate Procedure, amici state
that no party’s counsel authored this brief in whole or in part, and no party, party’s
counsel, or any other person, other than the amici curiae, their members, or their
counsel, contributed money that was intended to fund preparing or submitting the
brief. Pursuant to Rule 29(c)(4), all parties have consented to the filing of this
brief.
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undermines the ability of the press to gather and report the news.
SUMMARY OF ARGUMENT
Pursuant to Section 702 of the Foreign Intelligence Surveillance Act
Amendments Act of 2008, 50 U.S.C. § 1881a, the National Security Agency
acquires the contents of communications of non-United States persons who are
located outside the United States through “upstream collection.” Under this
program, the government compels backbone service providers—companies that
control the telecommunications equipment through which ISPs route their traffic—
to provide communications sent through their equipment to the government.
Privacy and Civil Liberties Oversight Board, Report on the Surveillance Program
Operated Pursuant to Section 702 of the Foreign Intelligence Surveillance Act, 7
(July 2, 2014) (“PCLOB Report”). The Plaintiffs challenged the upstream program
on the grounds that it violates the First Amendment as well as the Fourth
Amendment.
Amici curiae submit this brief to emphasize that this Court should consider
the Plaintiffs’ First Amendment interests in considering whether they have
established standing to challenge upstream surveillance. Plaintiffs include two
media organizations primarily involved in creating and disseminating news and
content to readers: The Nation, a weekly magazine, and Wikimedia Foundation,
which develops and distributes free educational content. A third Plaintiff, PEN
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American Center, is an association of writers that advocates for freedom of
expression and the free flow of information. Upstream surveillance of internet and
phone communications can reveal a reporter’s sources, documentary materials, and
work product. Bulk surveillance like the upstream program has already given rise
to a widespread chilling effect traceable to the conduct challenged in this case.
These specific harms constitute a cognizable injury and give rise to standing in this
case.
INTRODUCTION
Section 702 of the Foreign Intelligence Surveillance Act Amendments Act
of 2008 allows the government to collect communications occurring abroad and
relating to foreign persons. 50 U.S.C. § 1881a. According to an unclassified
report regarding the government’s programs under Section 702, for example, the
PRISM program allows the government to send a “selector”—a piece of
information, such as an email address, that identifies a particular user—to an
internet service provider (“ISP”), compelling that ISP to provide communications
sent to or from that selector to the government. PCLOB Report at 7. Separately,
Section 702 also permits upstream surveillance, which facilitates the collection of
communications “about” targeted selectors acquired directly from the internet
backbone. Id. at 119 (describing “upstream” surveillance as “the process whereby
the NSA acquires communications as they transit the Internet ‘backbone’ within
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the United States”). Notably, upstream surveillance allows the government to
seize communications about a target, not just communications sent to or from that
target. Id.
As PCLOB recognized in its Report, there are “serious and novel questions
raised by ‘about’ collection as a constitutional and policy matter.” Id. at 124.
Among those pressing questions is the fact that domestic communications that
include a targeted e-mail address and that transit a foreign server—for example, a
forwarded email that includes an email “selector” in the body—can be collected
despite the absence of any suspicion. In addition, under Section 702 the
government can target for collection the account of any foreign person who “may
possess information ‘with respect to a foreign power or foreign territory that relates
to . . . the conduct of the foreign affairs of the United States.” Id. at 115.
This type of collection has a significant, detrimental effect on reporters and
those engaged in gathering or disseminating the news. Journalists’ foreign sources,
for example, may be targeted for surveillance under Section 702. As a result, the
government can monitor domestic reporters’ conversations about third parties—
such as those between reporters and editors discussing a confidential source—to
obtain information relating to that third party, even if that party is not part of the
conversation.
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This practice undermines reporters’ confidence that their online
communications, contacts lists, documentary materials, and work product are
secure. In turn, bulk surveillance of online activity makes it difficult for the press
to investigate matters of public interest.
ARGUMENT
I.
The District Court erred in characterizing Plaintiffs’ claims as too
speculative to give rise to standing.
The District Court below erred in holding that Clapper v. Amnesty
International establishes that Plaintiffs lack standing here. See Op. at 29 n.27 (JA
202) (citing Clapper v. Amnesty Intern. USA, 133 S.Ct. 1138, 1150–52 (2013)). In
Clapper, a number of public interest organizations, journalists, and lawyers
challenged the constitutionality of Section 702. As they do here, the plaintiffs
argued that the statute violated the First and Fourth Amendments and Article III of
the Constitution. Id. at 1146. Plaintiffs claimed that the likelihood that their
communications with non-United States persons would be intercepted was high,
and that they had been “forced to take costly and burdensome measures to protect
the confidentiality of their international communications.” Id. In a 5-4 decision,
the Supreme Court held that the plaintiffs lacked standing to challenge the
program. Characterizing the plaintiffs’ fears as “highly speculative,” id. at 1148,
the Court dismissed their “self-inflicted injuries” as not sufficient to give rise to
standing. Id. at 1152.
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Since Clapper, as Plaintiffs point out, the government has made extensive
public, unclassified disclosures describing surveillance activities under Section
702. See App. Br. at 52. Nevertheless, the District Court below found that
Clapper foreclosed the argument that the Plaintiffs may have standing under the
First Amendment. See Op. at 29 n.27 (JA 202) (citing Clapper, 133 S.Ct. at 1150–
52). Unlike in Clapper, however, where the plaintiffs asserted harms “stemming
from a reasonable fear of future harmful government conduct,” 133 S.Ct. at 1146
(emphasis in original), Plaintiffs here challenge conduct that is not only ongoing
and publicly acknowledged, but also creating large-scale effects that have been
documented in multiple studies and reports, which are discussed in more detail
below. See, e.g., Pew Research Center, Investigative Journalists and Digital
Security (Feb. 2015), http://pewrsr.ch/1DPwQ9b [Pew Study hereinafter]; PEN
American Center, Chilling Effects: NSA Surveillance Drives Writers to Self-Censor
(Nov. 2013), www.pen.org/chilling-effects [PEN Report hereinafter]; Human
Rights Watch, With Liberty to Monitor All (July 2014), http://hrw.org/node/127364
[Human Rights Watch Report hereinafter].
This Circuit has recognized that chilling effects can give rise to standing for
First Amendment claims. “In First Amendment cases, the injury-in-fact element is
commonly satisfied by a sufficient showing of ‘self-censorship, which occurs when
a claimant is chilled from exercising h[is] right to free expression.’” Cooksey v.
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Futrell, 721 F.3d 226, 235 (4th Cir. 2013), quoting Benham v. City of Charlotte,
635 F.3d 129, 135 (4th Cir. 2011). “Government action will be sufficiently
chilling when it is ‘likely [to] deter a person of ordinary firmness from the exercise
of First Amendment rights.’” Benham, 635 F.3d at 135, quoting Constantine v.
Rectors & Visitors of George Mason Univ., 411 F.3d 474, 500 (4th Cir. 2005).
While plaintiffs must allege a sufficient “specific present objective harm or a threat
of specific future harm” to establish standing, Laird v. Tatum, 408 U.S. 1, 13–14
(1972), that standard is easily met in the present case.
A. Communications surveillance impedes journalists’ ability to safeguard
confidential sources.
Traditionally, a reporter’s reputation for protecting her confidential sources
is one bargaining chip that she can use to get useful information the public
deserves to know. For example, the Watergate scandal was reported through the
use of an unnamed source who only revealed his identity decades after the story
broke. The source, known as “Deep Throat” for roughly thirty years, turned out to
be W. Mark Felt, a high-ranking FBI agent. Felt was so “wary of his role as a
confidential source” that Bob Woodward, one of the reporters responsible for
breaking the Watergate scandal, claimed that Felt had “lied to his family, to his
friends, and colleagues, denying he had helped [Woodward and his colleagues].”
John D. O’Connor, I’m the Guy They Called Deep Throat, Vanity Fair (July 2005)
(available at https://perma.cc/LH5C-KERT). Felt’s willingness to provide facts to
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break the Watergate scandal certainly required great trust that Woodward would
not reveal him.
Today, surveillance under Section 702 undercuts confidential sources’
willingness to speak to reporters because the government need not confront a
reporter or source directly in order to identify and expose the source. Under
Section 702, the government may collect information “about” targeted selectors
regardless of whether the selector is actually suspected of wrongdoing. Indeed,
recent studies by Human Rights Watch, the Pew Research Center, and PEN
American Center reflect that this atmosphere of surveillance is creating widespread
chilling effects within the press.
B. Upstream surveillance has created well-documented chilling effects
on the journalistic profession.
Numerous recent studies have documented the precise chilling effects that
upstream surveillance programs have on the press, especially journalists who
report on intelligence, national security, and law enforcement issues. Upstream
surveillance stifles desirable First Amendment activity by restricting availability to
sources and information, impeding the newsgathering process, and lowering the
level of public discourse.
i. Upstream surveillance interferes with journalist-source
relationships.
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Open communication with sources is essential to the practice of journalism.
The ability to gather information is equally important as the right to disseminate
the information through various media. However, communicating with existing
sources and cultivating new sources has become increasingly difficult since
knowledge of NSA surveillance became public. One-third of journalists
interviewed by the Pew Research Center for a report on digital security practices
reported that “over the past year, it has become harder to find sources willing to go
on the record, a term that means what the source says can be reported, published,
or aired.” Pew Study at 8. Furthermore, 80 percent responded that “being a
journalist increases the likelihood that their data will be collected by the U.S.
government.” Id. at 6. The reluctance of journalists to contact sources creates a
less robust media, less able to serve the public.
A 2013 report by PEN American Center documents myriad ways in which
journalists, writers, and reporters are chilled by surveillance. See generally Pen
Report. PEN reported that “writers are self-censoring their work and their online
activity due to their fears that commenting on, researching, or writing about certain
issues will cause them harm.” Id. at 6. Twenty-eight percent of respondents to
PEN reported that they had “curtailed or avoided social media activities,” while 24
percent reported having “deliberately avoided certain topics in phone or email
conversations.” Id.
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Journalists who report on intelligence, national security, and law
enforcement pinpoint two specific effects of communications surveillance that
have restricted their ability to gather information. First, the ability to gather
information from sources is burdened because of widespread uncertainty
concerning the scope of the government’s surveillance power. See Human Rights
Watch Report at 22. Because upstream surveillance is conducted in secret, few
people—let alone journalists—know precisely how and when the government
chooses to access information. The Human Rights Watch Report pointed out that
because of uncertainty surrounding the minimization and use restrictions that apply
to information gathered under foreign intelligence surveillance authorities, “many
journalists see the government’s power as menacing because they know little about
when various government agencies share among themselves information collected
through surveillance, and when they deploy that information in leak
investigations.” Id.
ii. Upstream surveillance chills the newsgathering process.
Increased awareness of government surveillance has substantially changed
and hampered newsgathering activity. Forty-nine percent of investigative reporters
have changed the way they store and share sensitive documents. See Pew Study at
10. Changes include encrypting e-mails sent to both sources and colleagues
(14%), and using anonymous e-mail accounts (14%). Id. at 9. Reporters also
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indicated that they use disposable phones for professional conversations rather than
phones easily traceable to them. See Human Rights Watch Report at 37
(“Journalists and their sources have also made creative use of common
technologies . . . [t]he most common such approach is to use ‘burner phones’ —
cell phones with limited identifiable links to the owner, and which one disposes of
after a matter of days or weeks.”). Other journalists have attempted to sidestep
technology that could be compromised. Seventeen percent of investigative
reporters do not use third-party servers when communicating via e-mail, and others
report uploading sensitive documents to computers that have no internet access.
See Pew Study at 10. Only two percent of journalists surveyed by the Pew Center
said they have “a lot of confidence” that their ISP will protect their information
from carte blanche access, whereas 90 percent believe their ISP would share their
data with the NSA. Id. at 3.
Journalists have responded to this uncertain environment by employing new
technology to protect information and avoiding electronic tools that are easily
manipulated. See Human Rights Watch Report at 30-37. These efforts are not de
minimis. Journalists who merely want to protect their content and sources must
learn how to use a particular technology or master a particular strategy. These
extra steps and changed practices have discouraged many journalists. See id. at 34.
Those reporters are forced to choose among performing their work without any
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additional safeguards, risking the chance of surveillance, or pursuing stories that
are of less interest to the government. These mechanisms essentially raise the cost
of reporting by forcing journalists and sources to take extra time and invest in extra
resources to protect communications.
The fact that some journalists and sources are, indeed, adopting tools to
continue reporting despite ongoing monitoring does not suggest that surveillance
of the press is harmless; rather, a cognizable injury arises simply because
communications between journalists and their sources are chilled. Cf. Donohue v.
Duling, 465 F.2d 196, 202 (4th Cir. 1972) (finding that plaintiffs lacked standing
where they were “undeterred by any action by the defendants” and offered no
testimony “of any inhibiting of their own exercise of the rights of free speech, of
any penalty imposed on them which could be attributed to their exercise of their
First Amendment rights, of any loss of employment or even reasonably foreseeable
threat of such, of any threat of prosecution, or specific, identifiable civil sanction”).
II.
Upstream surveillance harms the press by permitting widespread searches
without adequate protections.
As PCLOB recognized in its Report, the upstream program implicates
important Fourth Amendment interests “of the U.S. persons whose
communications may be acquired despite not themselves having been targeted for
surveillance.” PCLOB Report at 87. In particular, the collection of
communications “about” a particular target in upstream surveillance, which has
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significant implications for reporters and news media organizations, is “close to the
line of constitutional reasonableness.” Id. at 88. This Court should therefore
consider the First Amendment interests implicated by the absence of adequate
Fourth Amendment safeguards.
A. The Fourth Amendment is rooted in concerns about safeguarding the
press from general warrants.
The Fourth Amendment provides that “[t]he right of the people to be secure
in their persons, houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated.” U.S. Const, amend. IV. This prohibition on
unreasonable searches of “papers” arose from a long list of abusive practices in the
colonial era, many of which targeted printers and publishers of dissenting
publications. As a result, the Fourth Amendment’s roots are intertwined with the
First Amendment guarantees of free speech and a free press. Indeed, the history of
the Fourth Amendment is “largely a history of conflict between the Crown and the
press.” Stanford v. Texas, 379 U.S. 476, 482 (1965).
The pre-revolutionary practice of issuing “general warrants,” which allowed
law enforcement to search “private houses for the discovery and seizure of books
and papers that might be used to convict their owner of the charge of libel,” was
particularly odious to the press and to the Framers. Boyd v. United States, 116
U.S. 616, 626 (1886). The two colonial-era landmark cases that inform our
understanding of the history and purpose of the Fourth Amendment—Entick v.
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Carrington and Wilkes v. Wood—both involved the press.
In Entick v. Carrington, the British Secretary of State issued a general
warrant for Entick, a writer for a dissenting publication, and his papers. The
King’s messengers ransacked Entick’s house to find seditious material that was to
be brought before the secretary of state. 19 How. St. Tr. 1029 (1765). Lord
Camden decried the general warrant, writing of Entick, “His house is rifled; his
most valuable secrets are taken out of his possession, before the paper for which he
is charged is found to be criminal by any competent jurisdiction, and before he is
convicted either of writing, publishing, or being concerned in the paper.” Id. at
1064. Lord Camden dismissed the contention that “this power is essential to
government, and the only means of quieting clamors and sedition.” Id. He
reviewed the long history of the Star Chamber’s persecution of the press and the
dangers that general warrants continued to pose and concluded that the general
warrant could not stand. Id.
Similarly, in Wilkes v. Wood, Lord Camden also dismissed a general warrant
issued against a dissenting printer, concluding that the “discretionary power given
to messengers to search wherever their suspicions may chance to fall” was “totally
subversive of the liberty of the subject.” 19 How. St. Tr. 1153, 1167 (1763). In
short, “[t]he Bill of Rights was fashioned against the background of knowledge
that unrestricted power of search and seizure could also be an instrument for
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stifling liberty of expression,” Marcus v. Search Warrant, 367 U.S. 717, 729
(1961), and for undermining freedom of the press.
B. Fourth Amendment protections must be rigorously applied when First
Amendment rights are at stake.
Because of the historic link between the First and Fourth Amendments, the
Supreme Court has found that where materials to be searched or seized “may be
protected by the First Amendment, the requirements of the Fourth Amendment
must be applied with ‘scrupulous exactitude.’” Zurcher v. Stanford Daily, 436
U.S. 547, 564 (1979) (emphasis added). Indeed, Zurcher expressly calls for
“consideration of First Amendment values in issuing search warrants.” Id. at 565.
The Zurcher Court concluded that the Fourth Amendment’s warrant
requirements were sufficiently protective of First Amendment rights. Id. at 567.
Specifically, the Court stated that “[p]roperly administered, the preconditions for a
warrant—probable cause, specificity with respect to the place to be searched and
the things to be seized, and overall reasonableness—should afford sufficient
protection against the harms that are assertedly threatened by warrants for
searching newspaper offices.” Id. at 565.
The Fourth Amendment’s requirements reflect the Framers’ recognition that
government searches and seizures can stifle expression and dissent. Thus, as the
Supreme Court has stated in discussing the Fourth Amendment’s probable cause
requirement for a warrant: “No less a standard could be faithful to First
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Amendment freedoms.” Stanford v. State of Tex., 379 U.S. 476, 485 (1965).
C. Section 702 permits searches and seizures of journalists’ documentary
materials and work product in violation of the Privacy Protection Act.
In 1980, Congress responded to the ruling in Zurcher by passing the Privacy
Protection Act (“PPA”), 42 U.S.C. § 2000aa, which made it unlawful for law
enforcement to “search for or seize” work product and documentary materials
“possessed by a person reasonably believed to have a purpose to disseminate to the
public a newspaper, book, broadcast, or other similar form of public
communication.” Under the PPA, it is permissible to conduct such searches when
“there is probable cause to believe that the person possessing such materials has
committed or is committing the criminal offense to which the materials relate.” Id.
Upstream surveillance under Section 702 allows the government to capture
and keep domestic communications that include references to “selector”
information relating to a foreign person under surveillance. PCLOB Report at 7.
Consequently, upstream surveillance is akin to opening citizens’ mail whenever
they write messages that discuss a certain subject. Id. at 122 (“From a legal
standpoint, under the Fourth Amendment the government may not, without a
warrant, open and read letters sent through the mail in order to acquire those that
contain particular information.”). Just as reading citizens’ mail would be a gross
invasion of citizens’ privacy, so the government’s ability to read the content of
reporters’ emails intrudes on important constitutional and statutory protections.
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As a result, when the government searches or seizes journalists’
communications records under Section 702, it violates the PPA. Although the
Foreign Intelligence Surveillance Act was ostensibly meant to give the government
leeway to surveil foreign parties, upstream surveillance also allows the government
to surveil news agencies whenever they discuss foreign parties the government has
decided to investigate. But because FISA only requires the government to inform
parties of information gleaned through upstream surveillance when that
information will be used against those parties in adversary process, Section 702
enables the government to obtain a reporter’s emails about a third party without
notifying the reporter. See, e.g., 50 U.S.C. § 1806(c).
Secret acquisition of communications records makes it impossible for
reporters to mount a traditional legal defense to government intrusions into press
autonomy by eliminating any opportunity to challenge or attempt to quash these
requests. As a result, journalists have no opportunity to assert their First
Amendment rights when their records are obtained via Section 702 surveillance.
The fact that the search is secret deprives journalists, reporters, and media
organizations of a forum in which to raise First Amendment or statutory arguments
about the propriety of the surveillance. Nor is it true that secret surveillance, as a
matter of law, does no legally cognizable harm to First Amendment rights. See
Hassan v. City of New York, 804 F.3d 277, 292 (3rd Cir. 2015), as amended (Feb.
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2, 2016) (“Laird doesn’t stand for the proposition that public surveillance is either
per se immune from constitutional attack or subject to a heightened requirement of
injury.”).
As a result, a reporter whose communications are acquired through upstream
surveillance will likely never be notified of the acquisition. This practice runs
counter to other mechanisms that protect journalists and reporters from searches
and seizures without notice. For example, the Department of Justice’s policy with
regard to the issuance of subpoenas to members of the news media, subpoenas for
telephone toll records of members of the news media, and the interrogation,
indictment, or arrest of, members of the news media, provides that certain law
enforcement tools may be used to target news media only when “the information
sought is essential to a successful investigation, prosecution, or litigation,” and
after the government has given notice to and pursued negotiations with the targeted
reporter. 28 C.F.R. § 50.10(a)(3).
CONCLUSION
For the foregoing reasons, amici curiae respectfully urge this Court to
reverse.
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Respectfully submitted,
/s/ Bruce D. Brown
Bruce D. Brown
Counsel of Record
Gregg P. Leslie
Hannah Bloch-Wehba
Reporters Committee for
Freedom of the Press
1156 15th Street NW, Ste. 1250
Washington, D.C. 20005
(202) 795-9301
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CERTIFICATE OF SERVICE
I hereby certify that on February 24, 2016, an electronic copy of the
foregoing brief was filed with the Clerk of Court for the United States Court of
Appeals for the Fourth Circuit using the Court’s CM/ECF system and was served
electronically by the Notice of Docket Activity upon all parties in the case. I certify
that all participants in the case are CM/ECF users and that service will be
accomplished by the appellate CM/ECF system.
/s/ Hannah Bloch-Wehba
Hannah Bloch-Wehba
Reporters Committee for
Freedom of the Press
1156 15th Street NW, Ste. 1250
Washington, D.C. 20005
(202) 795-9301
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CERTIFICATE OF COMPLIANCE
I certify that this brief complies with the type-face and volume limitations
set forth in Fed. R. of App. P. 32(a)(7)(B) as follows: The type face is fourteenpoint Times New Roman font, and the word count is 4,013, excluding the portions
of the brief exempted by Rule 32(a)(7)(B)(iii).
/s/ Hannah Bloch-Wehba
Hannah Bloch-Wehba
Reporters Committee for
Freedom of the Press
1156 15th Street NW, Ste. 1250
Washington, D.C. 20005
(202) 795-9301
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APPENDIX A: DESCRIPTIONS OF AMICI
The Reporters Committee for Freedom of the Press is a voluntary,
unincorporated association of reporters and editors that works to defend the First
Amendment rights and freedom of information interests of the news media. The
Reporters Committee has provided assistance and research in First Amendment
and Freedom of Information Act litigation since 1970.
The Thomas Jefferson Center for the Protection of Free Expression is a
nonprofit, nonpartisan organization located in Charlottesville, Virginia. Founded
in 1990, the Center has as its sole mission the protection of free speech and press.
The Center has pursued that mission in various forms, including the filing of amici
curiae briefs in this and other federal courts, and in state courts around the country.
With some 500 members, American Society of News Editors (“ASNE”) is
an organization that includes directing editors of daily newspapers throughout the
Americas. ASNE changed its name in April 2009 to American Society of News
Editors and approved broadening its membership to editors of online news
providers and academic leaders. Founded in 1922 as American Society of
Newspaper Editors, ASNE is active in a number of areas of interest to top editors
with priorities on improving freedom of information, diversity, readership and the
credibility of newspapers.
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Association of Alternative Newsmedia (“AAN”) is a not-for-profit trade
association for 130 alternative newspapers in North America, including weekly
papers like The Village Voice and Washington City Paper. AAN newspapers and
their websites provide an editorial alternative to the mainstream press. AAN
members have a total weekly circulation of seven million and a reach of over 25
million readers.
First Amendment Coalition is a nonprofit public interest organization
dedicated to defending free speech, free press and open government rights in order
to make government, at all levels, more accountable to the people. The Coalition’s
mission assumes that government transparency and an informed electorate are
essential to a self-governing democracy. To that end, we resist excessive
government secrecy (while recognizing the need to protect legitimate state secrets)
and censorship of all kinds.
First Look Media, Inc. is a new non-profit digital media venture that
produces The Intercept, a digital magazine focused on national security reporting.
Free Press is a national, nonpartisan, non-profit organization with
approximately one million members in the United States and around the world. It
works to defend Internet freedom and press freedom, including the right of
journalists and others to gather and report on information as well as the public’s
right to see, hear and read that information — both of which are crucial to a
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functioning democracy. Free Press has participated in numerous court and agency
proceedings on media, telecommunications,and technology law topics, including
those involving First Amendment issues, since the organization's founding in 2003.
Freedom of the Press Foundation is a non-profit organization that supports
and defends public-interest journalism focused on transparency and accountability.
The organization works to preserve and strengthen First and Fourth Amendment
rights guaranteed to the press through a variety of avenues, including public
advocacy, legal advocacy, the promotion of digital security tools, and crowdfunding.
GateHouse Media is a preeminent provider of print and digital local content
and advertising in small and midsize markets. Our portfolio of products, which
includes 404 community publications and more than 350 related websites and six
yellow page directories, serves over 128,000 business advertising accounts and
reaches approximately 10 million people on a weekly basis.
The International Documentary Association (IDA) is dedicated to building
and serving the needs of a thriving documentary culture. Through its programs, the
IDA provides resources, creates community, and defends rights and freedoms for
documentary artists, activists, and journalists.
Investigative Reporters and Editors, Inc. is a grassroots nonprofit
organization dedicated to improving the quality of investigative reporting. IRE was
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formed in 1975 to create a forum in which journalists throughout the world could
help each other by sharing story ideas, newsgathering techniques and news
sources.
The Investigative Reporting Workshop, a project of the School of
Communication (SOC) at American University, is a nonprofit, professional
newsroom. The Workshop publishes in-depth stories at
investigativereportingworkshop.org about government and corporate
accountability, ranging widely from the environment and health to national
security and the economy.
The Media Consortium is a network of the country’s leading, progressive,
independent media outlets. Our mission is to amplify independent media’s voice,
increase our collective clout, leverage our current audience and reach new ones.
The National Press Photographers Association (“NPPA”) is a 501(c)(6) nonprofit organization dedicated to the advancement of visual journalism in its
creation, editing and distribution. NPPA’s approximately 7,000 members include
television and still photographers, editors, students and representatives of
businesses that serve the visual journalism industry. Since its founding in 1946, the
NPPA has vigorously promoted the constitutional rights of journalists as well as
freedom of the press in all its forms, especially as it relates to visual journalism.
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The submission of this brief was duly authorized by Mickey H. Osterreicher, its
General Counsel.
North Jersey Media Group Inc. (“NJMG”) is an independent, family-owned
printing and publishing company, parent of two daily newspapers serving the
residents of northern New Jersey: The Record (Bergen County), the state’s secondlargest newspaper, and the Herald News (Passaic County). NJMG also publishes
more than 40 community newspapers serving towns across five counties and a
family of glossy magazines, including (201) Magazine, Bergen County’s premiere
magazine. All of the newspapers contribute breaking news, features, columns and
local information to NorthJersey.com. The company also owns and publishes
Bergen.com showcasing the people, places and events of Bergen County.
Online News Association (“ONA”) is the world’s largest association of
online journalists. ONA’s mission is to inspire innovation and excellence among
journalists to better serve the public. ONA’s more than 2,000 members include
news writers, producers, designers, editors, bloggers, technologists, photographers,
academics, students and others who produce news for the Internet or other digital
delivery systems. ONA hosts the annual Online News Association conference and
administers the Online Journalism Awards. ONA is dedicated to advancing the
interests of digital journalists and the public generally by encouraging editorial
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integrity and independence, journalistic excellence and freedom of expression and
access.
Radio Television Digital News Association (“RTDNA”) is the world’s
largest and only professional organization devoted exclusively to electronic
journalism. RTDNA is made up of news directors, news associates, educators and
students in radio, television, cable and electronic media in more than 30 countries.
RTDNA is committed to encouraging excellence in the electronic journalism
industry and upholding First Amendment freedoms.
Reporters Without Borders has been fighting censorship and supporting and
protecting journalists since 1985. Activities are carried out on five continents
through its network of over 150 correspondents, its national sections, and its close
collaboration with local and regional press freedom groups. Reporters Without
Borders currently has 10 offices and sections worldwide.
The Tully Center for Free Speech began in Fall, 2006, at Syracuse
University’s S.I. Newhouse School of Public Communications, one of the nation’s
premier schools of mass communications.
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APPENDIX B: OF COUNSEL
Kevin M. Goldberg
Fletcher, Heald & Hildreth, PLC
1300 N. 17th St., 11th Floor
Arlington, VA 22209
Counsel for American Society of News Editors and Association of Alternative
Newsmedia
Peter Scheer
First Amendment Coalition
534 Fourth St., Suite B
San Rafael, CA 94901
Lynn Oberlander
General Counsel, Media Operations
First Look Media, Inc.
18th Floor
114 Fifth Avenue
New York, NY 10011
Matthew F. Wood
Free Press
1025 Connecticut Avenue, NW,
Suite 1110
Washington, DC 20036
(202) 265-1490
Marcia Hofmann
Zeitgeist Law PC
25 Taylor Street
San Francisco, CA 94012
Counsel for Freedom of the Press Foundation
Polly Grunfeld Sack
SVP, General Counsel and Secretary
GateHouse Media, LLC
175 Sully’s Trail, 3rd Floor
Pittsford, New York 14534
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Mickey H. Osterreicher
1100 M&T Center, 3 Fountain Plaza,
Buffalo, NY 14203
Counsel for National Press Photographers Association
Jennifer A. Borg
General Counsel
North Jersey Media Group Inc.
1 Garret Mountain Plaza
Woodland Park, NJ 07424
Laura R. Handman
Alison Schary
Davis Wright Tremaine LLP
1919 Pennsylvania Avenue, NW
Suite 800
Washington, DC 20006
Thomas R. Burke
Davis Wright Tremaine LLP
Suite 800
500 Montgomery Street
San Francisco, CA 94111
Counsel for Online News Association
Kathleen A. Kirby
Wiley Rein LLP
1776 K St., NW
Washington, DC 20006
Counsel for Radio Television Digital News Association
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